The Memphis appeal. [volume] (Memphis, Tenn.) 1886-1890, 1887-02-15
synop,is OF the Judg.'s Charge.

synop,is OF the Judges Charge.
The defendant is indicted for muir
der in the fret degree; the one count,
however, embraces murder in tbs first
and second degrees, volunt sry and in.
voluntary granddaughter and the mig
demeanor Of assault and battery. The
language OF the statutes bearing on all
these different grades is then defined.
10 order to he murder in the fret de-
gree the killing must be done willuIly,
with the intent that the act should
have that effect, deliberately and with
cool purpose. Malice and pTemedita-
ton must be performed beforehand.
The distinctive characteristic OF muir.
der in the first degree is p' emedita-
ton. Fermentation involves pre-
viously formed design or &C ual inten-
ton to kill. But such design or inten.
ton may be conceived and deliberate
ly formed in an instant. 1t is sufi-
cieut that II precede the assault, how.
ever short the interval. Ths mental
state OF the defendant at the time Of
the killing Is OF more i'm portauce than
the 'ength of time. You must in
quirF, was the mind of the defendant
at the moment of the killing free
from excitement or passion; was the
death OF the deceased the object
sought? II defendant bar bored a pre-
meditated design 10 kill, then he had
express malice, a constituent Of
murder in the q st degree. In
considering the circums' ances of
the killing you must inquire, was
there a former grudge against de-
ceased? Did his conduct indicate de-
liberation2 II so, then the killing
was done wilfully. To constitute muir
der in the second degree the proof
must show that the killing was unlaw-
full and malicious. The cool, deliber.
ate purpose requisite to constitute
murder In the first degree Is not es-
sential in making out this crime and,
though the proof might show that the
defendant did not design to kill the
deceased, still, II tie design was
formed upon sudden impulse of pas
sion, without adequate provocatioD,
and disconnected with any previously
formed design, and II executed will.
fully and maliciously, 1t would be
murder In the second degree. The
principal ingredient in this offense Is
malice, which may be either expressed
or implied. II one man kills another
upon sudden heat produced by ade.
quste provocstion, as ii upon sud-
den quarrel two persons fight and one
kills the other, this is voluntary man.
slaughter; and, in general, II a
person is struck, strikes agsiD, and
death entues from the blow
il is voluntary manslaughter. The
law regarding the blow as sufficient to
excite the passions, and the act of
killing will be imputed to heat OF
blood or passion rather than malice, if
no undue al vantage be taken by the
one doing tina killing. The sudden
heat which is the disting uishing char
aceristic oil this off-nse must be pro.
duced by adequate provocation. In
voluntary manslaughter is where it
plainly appears that neither death nor
any bodily harm was intended, but
death Is accidentally caused by some
unlawful aci or lawful act done in an
unlawful manner. An assault is an
intentional attempt by violence to do
an injury to another. The attempt
must be Intentional, for II it can be
collected, Notwithstanding appear
ances to the contrary, that there 10, or
was not, a present purpose to do in
jury, there Is no assault So il a man
raise his stick and shake ii at another,
and say, "were you not an old man
would knock you down." this would
not be an assault, for tue language
used negatives the idea OF present
purpose to strike. No words of them.
selves will amount TO an assault. Strik-
ing at another with cane or the fist,
although the party striking misses his
aim, to point loaded pistol at another
within the distance the pistol will
carry, or eny other act indicating an
Intention TO use violence against the
person OF another, ia an assault.
II you find the defendant guilty at
all, you must say in your verdict OF
what degree OF fslonious homicide or
misiemeauor he is guilty, as these
several ofienses have heretofore been
explained to you. If upon all the
proof yoa have a reasonable doubt OF
the defendants guilt OF any OF the Of
lenses embraced in the indictment,
IL will be your duty to acquit him, and
your verdict should be "Not guilty."
After the delivery Of the charge
Judge DuBose, at the Ieques> OF de-
PENDANTS counsel, append I'd the FOL.
lowing
SPECIAL CHARGE:
"When the defendant is once
shown to be insane, the presumption
of insanity is established, and remains
until overturned by proof Of sanity
by the State" ''
The Court asked whether counsel
for the defense would consent to the
letters supposed to be from Mrs. Polk
being taken by the jury to their room
for inspection.
The defense stated that they had
objected to the admission Of the let.
tiers as evidence, and could not now
waive their objection. The matter,
however, was in the Judges province.
The Court decided not to allow the
letters TO be taken by the defense.
ANOTHER ON INSANITY.
Attorney General Peters submitted
the following special charge to the
Court for delivery TO the jury, which